1. The view of the lower Courts that the Agraharam falls under Clause 2(e) of Section 8 of the Estates Land act is clearly erroneous. See Bila Sanyasi Naidu v. Agnihotram Venkatacharyulu 23 Ind. Cas. 96 : 26 M.L.J. 258 : (1914) M.W.N. 318 : 1 L.W. 241.
2. It may fall under Clause 2(d), if the land revenue alone had been granted as inam by the Zemindar before the Permanent Settlement.
3. On the question of the burden of proving whether the land revenue alone was so granted or both the Warms were granted in the case of villages granted in inam to Brahmins before the Permanent Settlement, there 13 some conflict of opinion in the decisions of this Court.
4. The Subordinate Judge is requested to submit a finding on this question as a question of fact, allowing both sides to adduce further evidence. When both sides have been given an opportunity to adduce evidence, the question of burden of proof should not ordinarily be made mash of by Courts of fact in arriving at conclusions. The Subordinate Judge, however, if he thinks the evidence to be so very evenly balanced on both sides that the question of the burden of proof becomes important, might express his opinion in the alternative on the two views of the burden of proof.
5. The finding should be submitted within six weeks from the date of receipt of records, and ten days will be allowed for filing objections.
Seshagiri Aiyar, J.
6. The first question for consideration is whether the Agraharam is an estate as defined in Section 3, Clause 2(e); I think the Subordinate Judge is wrong in his view that it is. It is admitted that when the sannad was granted the Agraharam was in the possession of the plaintiffs' ancestors. It is also admitted that this property was not included in the sannad as being within the ambit of the Zemindari which was granted by the Government. The Zemindar was entitled to one Kattubadi fixed. It may be that he had some rights in the Agraharam see Jyoti Prosad Singh v. Lachipur Coal Co. 12 Ind. Cas. 482 : 38 C.p 845 : 14 C.L.J. 361 : 16 C.W.N. 241. It is not necessary to decide the exact nature of those rights. I am satisfied that the Agraharam was not regarded as an under-tenure at the time of settlement. I, therefore, think that Clause (e) does not cover this case See Tadikonda Buchi Virabhadrayya v. Sonti Venkanna 20 Ind. Cas. 769 : 24 M.L.J. 659 : (1913) M.W.N. 782.
7. On the question whether Clause (d) applies, we have the affidavits of the learned Vakils who appeared in the Court below that the plaintiffs were not allowed to adduce evidence to prove their case. Mr. Prakasam frankly admits that he is not prepared to deny the statements in these affidavits. We must ask the Subordinate Judge, after hearing the evidence which the parties may adduce, to return a finding whether the Agraharam is an estate falling under Section 3(2)(d) of the Estates Land Act.
8. The finding should be submitted within three months and ten days will be allowed for filing objections.
9. I agree and would only add that I should be slow to hold that any pre settlement inam could be brought within Section 3(2)(e). The Legislature was dealing with inams specifically in Clause (d) and I cannot think it intended to provide for any other class of them in (e). Clause (e) provides for portions of an estate held on permanent under-tenure and I cannot hold that the fact that Kattubadi is paid to a Zemindar in respect of a pre-settlement inam makes that inam either a 'portion' or an under tenure.
10. In compliance with the order contained in the above judgment in Civil Revision Petition No. 576 of 1913 the Subordinate Judge of Kistna at Elore submitted the following
1. The issue on which 1 am directed to submit my finding is
Whether in the case of villages granted in inam by the Zemindar to Brahmins before the Permanent Settlement, the land revenue alone had been so granted or both the Warms.
2. With reference to the High Court's direction to try the above issue as a question of fact, both parties were given an opportunity to adduce evidence. Each party has accordingly adduced evidence tending respectively to prove and disprove the fact in issue. And so the importance of the incidence of the burden of proof disappears almost entirely in this case. The plaintiff, who is the appellant, has produced no sannad relating to Dammennu village but has filed a sannad. relating to Karravari Savaram village, which is situated 2 miles away from Dammennu. according to the evidence of P.W. No. 12, who owns 1/6th share in 'Karravai Savaram,' the original grant, as evidenced by the sannad (Exhibit AAAA), was made in Fasli 1159 (1749), i.e. the game year as the grant of the suit Agraharam (Dammennu) by the then Zemindar Apparayanam Garu. Exhibit CCCC, read with the evidence of P.W. No. 12, shows that the original grant was in respect of 30 putties of waste land * * * (beedu bhoomi) out of the village of Chivatam. The grant was made to Karra Perayya Sastry, who was the ancestor (i. e. paternal grandfather's grandfather) of P.W. No. 12. It is clear from the evidence of P.W. No. 12 that it was a waste land which was granted to his ancestor, It is further deposed to by P.W. No. 12 that as the land was waste, his ancestor went with his family and lived there : that he dug wells and raised gardens of arecanuts, cocoanuts and mango trees. Exhibit BBBB is an extract from the Inam Register relating to Karravari Savaram, Agraharam referred to above. And Exhibit CCCC is a certified copy of the Dhimat issued to the village officers in pursuance of the sannad (Exhibit AAAA). The P.W. No. 12 deposed that from the time of his ancestor down to the time of his father, Savaram Agraharam was under the cultivation of the Agraharamdars themselves and that it was never in the cultivation of their tenants. The P.W. No. 12 further deposed that subsequent to the death of his father the Agraharam devolved upon him (P.W. No. 12) and his brothers and that they have been leasing out the same to tenants. The P.W. No. 12 also explained that his ancestor belonged to the Karra family and so he gave his family name to the Agraharam which was accordingly called 'Karravari Savaram.' And thus with reference to Karravari Savaram, the original grant being that of a waste land * * (beedu bhoomi), it follows that the grant consisted of the entire right in the property. For, the position of the Zemindar before the Permanent Settlement was that he had the administration of the whole Zemindari.
3. The other grant relied on by plaintiff's Pleader is that of Kanur Agraharam. Kanur Agraharam is situated about 4 or 5 miles from the village of Dammennu. No sannad or Dhimat has been produced but reliance is placed on the oral evidence of P.W. No. 13, Vadali Annappa. according to P.W. No 13 the Brahmins to whom the grant was made lived by cultivation. The grant was made to 80 or 90 Brahmins under a joint sannad and they were the residents of the Agraharam at the time of the grant. The Brahmins to whom the grant was made lived by cultivation and so they acquired both the Warms under the grant. It has, however, been held that in the case of an inam granted to a person in occupation of the land, the grant would still be only the Melvaram right although in consequence of the grant the Melvaram and the Kudivaram rights became vested in the same person vide Yeddamapudi Lahshmi Narasimha Row v. Repalli Sitaramaswami 19 Ind. Cas. 440 : 24 M.L.J. 288 : (1913) M.W.N. 282.
4. Coming next to the suit Agraharam of Dammennu, the question for consideration is, what was the nature of the right given to the Agraharamdar at the time of the grant in Fasli 1159 (1749) P It is clear from the evidence of P.W. No. 6, Kandalam, Tirumalacbaryulu, that Dammennu Agraharam was granted before the Permanent Settlement to his ancestor Prativathi Bhayamkaram Varadacharyulu, a resident of Vijiarayi which is situated at a distance of about 50 miles from Dammennu Agraharam. Dammennu is situated in Tanuku Taluk but Vijiarayi is situated in Ellore Taluk. Besides the oral evidence of P.W. No. 6, which goes to show that the original grantee was a non resident Brahmin of Vijiarayi, there is also the documentary evidence showing that the grantee's descendants also were residents of Vijiarayi, so far back as 1860 (vide columns 16 and 17 of Exhibit M) and even up to the year 1882 (Vide Exhibits M, N, Q and II). It has been held that the non-residence of the grantee, if proved, will negative the Kudivaram right vide Srimath Kidambi Jagannatha Charyulu v. Pidipiti Kutumbarayadu 25 Ind. Cas. 891 : 27 M.L.J. 233 : 39 M.p 21 and Upadrasta Venkata Sastrulu v. Devi Sitaramudu 24 Ind. Cas. 224 : 26 M.L.J. 585 : 38 M.k 891
5. The next point for consideration is whether the suit Agraharam (Dammennu) was a waste land (* * beedu bhoomi) as in the case of 'Karravari Savaram,' referred to in paragraph 2, or in the occupation of tenants as in the case of 'Kanur Agraharam' referred to in paragraph 3 supra. In the absence of the original sannad, reliance is placed by both sides on Exhibits M and SS as also on Exhibit I. Exhibit M is an extract from the Register of Inams in the village of Dimmennu. The original of Exhibit M appears to have been prepared in 1860. Exhibit SS is the Inam B Register of Dammennu Agraharam for Fasli 1293 (1888). And Exhibit I is a certified copy of Inam Statement of Dammennu Agraharam.
6. The three points for consideration regarding the village of Dammennu are
(a) Whether the village of Dammennu was a waste land at the time of the grant in 1749 as in the case of Karravari Savaram.'
(b) If not, whether the grant was to a Brahmin residing in the village and cultivating it as in the case of 'Kanur Agraharam.'
(c) Whether the grant was made to a Brahmin not residing in the village.
The suit village of Dammennu is described under column 8 of Exhibit M as 'granted as Agraharam.' In Exhibit I (column 14) reference is made to a Dhimat addressed to village officials. It is argued for the respondent that the reference to village officials presupposes the existence of a village and that, therefore, the entire land in Dammennu could not have been a waste land (* * bsedu bhoomi) at the time of the grant. And it is not the case of the plaintiff that Dammennu was entirely a waste land at the time of its grant in 1749.
7. Next as regards the points (b) and (c), if the village was not waste, it must have been in the occupation of tenants. The question then is, who were the tenants? Is it the original grantee? Or is it the ancestor of the present defendants? Certainly, it cannot be the original grantee, because according to P.W. No. 6 the original grantee was a resident of Vijiarayi. And it is impossible to believe that the original grantee residing at Vijiarayi (50 miles away from Dammennu) was the cultivating tenant prior to, and at the time of, the grant. I say it is impossible to believe, because even after the grant, the evidence on record points to the inference that the tenants themselves have been cultivating the land and not the Agraharamdars. The P.W. No. 8, who has been the Kurnam of Dam mennu for the past 30 or 40 years and who, according to his own admission, baa been working on behalf of the Agraharamdars in this litigation, supports the evidence of P.W. No. 6 in stating that the suit Agrabaram lands have been all along cultivated by the tenants and nut by the Agraharamdars themselves. And Exhibit I contains a statement of the Agraharamdar Srinivasacharyulu that from 1835 to 1852 he and his co-sharers were looking after (managing) the village, which does not mean that they were cultivating the lands in the village. It is also stated in Exhibit I that they (Agraharamdars) were enjoying the '* * * medhavi' i.e., produce or Melvaram. This recital gives a lie direct to the evidence of P.W. Nos. 1 and 11 that Pedda Purushothamacharyulu was himself cultivating the land 4 or 5 years before his death. For Pedda Purushothamacharyulu died in 1852 after he had relinquished his right in favour of his daughter's son so early as 1835.
8. The evidence of P.W. No. 8 further shows that to his knowledge no Agraharamdar personally cultivated any portion of the Agraharam lands in the village of Dammennu : that the Agraharamdars resided permanently at Vijiarayi in Ellore Taluk; that the Agraharamdars, when they visited Dammennu for collecting rents, etc., used to stay in a portion of the house belonging to P.W. No. 8; that 40 years ago Kandalam Venkatacharyulu lived in the house within the compound of P.W. No. 8 for 4 years with his wife and children but he did not during that period cultivate any of the Agraharam lands : and that, as a matter of fact, the Agraharamdars owned no house-sites at all in the village but they belonged to the tenants who cultivated the surrounding lands. This evidence of P.W. No. 8 falsifies the evidence of P. Ws. Nos. 1 and 17 who depose to a contrary state of facts. But the evidence of P. W. Nos. 1 and 17 is purely interested and utterly unreliable, as it is not only opposed to that of P. W. Nos. 6 and 8 but also quite contrary to the recital of Exhibit CC itself, which makes no mention of any pati sites belonging to the Agraharamdars.
9. If the Agraharamdars themselves were not the cultivators, either at the time of the grant, or subsequently as shown above, it follows that the grant of the suit Dammennu village must have been made to non resident Brahmins who were the inhabitants of Vijiarayi as deposed to by P.W. No. 6. And hence the case of Kanur Agraharam' has no application, whatever to the present case relating to Dammennu village. This disposes of points (b) and (c) in favour of defendants (respondents) and against plaintiff (appellant).
10. On the other hand, the evidence of P.W. No. 11, who is aged 90 years, shows that the village of Dammennu has been in the occupation of the tenants for nearly a century. Hence the presumption is that their ancestors also must have been living there in the absence of any evidence to the contrary. In the case of Raya v. Balkrishna Gangadhar 29 B.p 415 : 7 Bom. L.R. 439 it was observed that, if owing to antiquity there was no evidence of the commencement of a tenancy, it might be presumed to be co-extensive with the duration of the tenure of the landlord The presumption is that the Zemindar did not deal with the rights of the occupants when the grant was made, the ryots being tenants of an Agraharam in a Zemindari. In the present case, this presumption is strongly, supported by Exhibit XXXVII of 1853, which gives a description of the holdings of the several tenants as agraharam, 'Seri,' which means the same thing as 'jeroiti' or 'ryoti' holdings vide Narayanaswami v. Venkayya 6 Ind. Cas. 265 : (1910) M.W.N. 282 : 7 M.L.T. 366 and also Zemindar of Chellupalli v. Rajalapati Somayya 27 Ind. Cas. 77 : 27 M.L.J. 718 : 16 M.L.T. 576 : (1915) M.W.N. 1 : 2 L.W. 117: 39 M.P 341 The description of the holdings as 'Seri' in Exhibit XXXVII lends support to the further presumption that the tenants had been in the Dammennu village at the time of its grant to the ancestor of the Agraharamdars in 1749. This presumption, instead of being rebutted by any counter evidence on plaintiff's behalf, is supported by the admissions elicited in the cross-examination of P.W. No. 8 himself. For, P.W. No. 8 admitted that there are 40 or 50 families of tenants residing in the Agraharam and that he cannot say when these families first came to reside in the Agraharam, The P.W. No. 8 was not prepared to deny that the ancestors of these families were not the cultivating tenants at the time of the original grant.
11. With reference to the evidence pro and con dismissed in the foregoing paragraphs, it is clear that the suit Agraharam of Dammennu must have been in the occupation of cultivating tenants and not in the occupation of the original grantee, who, according to the evidence of P.W. No. 6, was a resident of Vijiarayi. I accordingly find with reference to the issue remitted for trial that, so far as the village of Dammennu is concerned, the land revenue alone (Melvaram) had been assigned to the original grantee and not the Kudivaram right also. This finding is also in accordance with the decision reported as Kandada Narasimhacharyalu v. Ravicherla Ramabrahmam 20 Ind. Cas. 759 : 24 M.L.J. 656 : (1913) M.W.N. 774 where it was observed that an Agrharamdar who obtained his inam from the Nuzvid Zemindar had only the Melvaram right.
12. Before concluding, I may add that I have not considered it necessary to discuss the contents of the other documents filed on both sides, firstly, because they do not throw any light upon the terms of the sannad showing the origin, of the grant of the suit Agraharam : secondly, because those documents relate to a disputed period and as such they are not of much evidentiary value to prove or disprove the nature of the original grant : and thirdly, because the mere fact that some of the tenants (not defendants) had acknowledged that they had no occupancy right is not sufficient to rebut the inference of occupancy right arising in favour of the tenants when they have been in possession for a long time and the origin of their tenancy is unknown.
13. In the result, my finding is that in the case of inams granted by the Zemindar to Brahmins before the Permanent Settlement, if the grantees of the inam were in possession of the inam lands as cultivating tenants, it would make such persons owners of both the Warams. So also in the case of waste lands granted by the Zemindar, the grantee would acquire both the Warams. I further find that in the case of an Agraharam village granted before the Permanent Settlement by the Zemindar to a Brahmin, who is a resident of a different place, as in the present case, the grant would be deemed to be only of the Melvaram, because the Kudivaram was with the tenants in actual possession of the land at the time of the grant [vide also Panataneni Venkataramiah v. Parvataneni Narayudu 17 Ind. Cas. 246 : 12 M.L.T. 313 and Suryanarayana v. Acchutta Potanna 22 Ind. Cas. 339 : 26 M.L.J, 99 : 38 M.P 608 : 15 M.L.T. 268. This finding has reference to the suit village and disposed of the issue in favour of defendants (respondents) and against plaintiff (appellant).
14. In compliance with the order contained in the above judgment in Civil Miscellaneous Appeal No. 16 of 1910, the Subordinate Judge of Kistna at Ellore submitted the following
1. Plaintiffs are the sons of one Kandady Varadaoharyulu. He had a divided brother Bulli Kristnamacharyulu He died childless leaving his widow Tiruvengalamma as his sole heir. A divided fourth share in the Dammennu Agraharam, composed of the lands in the possession of the defendants, 73 in number, in ail about 60 acres, belonged to Bulli Kristnama Charyulu. Tiruvengalamma died on 23rd March 1908. In 1894 with regard to about 40 acres of land she had executed in favour of the ryots registered cowles for a period of 60 years at a fixed rate of rent (Vide Exhibit XXVa to XXVk). With regard to remaining 20 acres they were let to the ryots for a period of 8 years from 1894, and in 1902 the cowles were again renewed for another period of 10 years. Tiruvengalamma having died in March 1908, the plaintiffs instituted this suit on 16th September 1908 as the reversioners to the estate of Bulli Venkayya, to recover the lands from the defendants. The plaintiffs contend that Tiruvengalamma had only the right to enjoy the said property as long as she lived, and that she had no higher right, that accordingly the cowles which she had given in respect of her properties were not valid subsequent to her death, and that they would not bind the plaintiffs (vide paragraph 6 of the plaint). The defendants plead, apart from any question as to the binding character of the cowless, that Dimmennu Agraharam is an estate falling within the definition of Section 3, Clause (d) of the Estate Land Act, and that the Civil Court has no jurisdiction to entertain the present suit in ejectment. The same question is under consideration in Civil Revision Petition No. 576 of 1913 on the file of the High Court. The parties in the present suit have agreed to the oral and documentary evidence in the said suit being treated as evidence in the present case. Over and above the said evidence the defendants examined an additional witness D. W. No. 6 in the case. The plaintiff re-called and further examined the plaintiffs' 8th witness the Kurnam, and filed certain additional documents JJJJ to SSSS. Thus the evidence is substantially the same in both the suits. The additional documents are merely intended to explain certain transactions in the light of the plaintiffs' case. The conditions necessary to bring an inam under the definition of an estate are four. (1) The original grant should be of a village as a whole. (2) The land revenue alone of the village should have been granted in inam. (3) That the person to whom the inam is granted should be one not owning the Kudivaram of the village. (4) The grant should have been made, confirmed or recognised by the British Government. The wording of the section shows that for any inam being classed as an estate the aforesaid conditions should be fulfilled : and it would, therefore, lie upon any person who sets up the plea that an inam is an estate to establish, apart from any presumptions, that it fulfils all the aforesaid conditions. Farther any person who wants to oust the jurisdiction of a Civil Court must also substantiate his plea The defendants were accordingly called upon to show that the plaint inam is an estate. The plaint inam has been confirmed by the British Government in 1860 (vide Exhibit M). The extract from the Inam Register shows that the inam was conferred in Fasli 1159 (1747) on Varadacharyulu by the Zemindar Rajah Apparayanam Garu. The sannad and 29 Dumbalas, from Fasli 1159 to 1210, the takeed and the patta produced before the Inam Commissioner by the inamdars are not now forthcoming. They were said to have been lost in a fire in Sanivarappet, which burnt the house in which one of the inamdars Sadagopalacharyulu was pot up. The evidence as to such loss is not of a convincing character, but there is nothing to show that plaintiffs had possession of those records, and I do not think that any presumption adverse to the plaintiffs could be drawn on that ground. The extent of the grant and the character of the inam should have, therefore, to be gathered from the available records. The Inam Statement filed by the inamdars at the time of the Inam Settlement in 1860, Exhibit I, shows that the grant was of the village of Dammennu as a whole and not of any specified portion thereof. It begins: 'Statement prepared by the Agraharikulu of Mounji Dammennu Agraharam attached to Relangi Taluk.' All the extents of land within the four boundaries of the village are claimed as inam with the exception of Porambokes 2 and odd putties and minor inams 8 and odd putties. As to whether the minor inams were in existence at the time of the grant it is not clear, but probably they did as the village undoubtedly existed at the time of the grant. The existence of such minor inams does not make the grant less the grant of a village as a whole. There is thus no doubt that the grant was of a village as a whole. Vide Gopisetti Narayanaswami v. Nalam Subrahmanyam 30 Ind. Cas. 375 : 29 M.L.J. 478 : 18 M.L.T. 148 : 2 L.W. 683 : (1915) M.W.N. 590 : 39 M.P 683
2 .Secondly, it has to be seen whether the grant was of the land revenue alone. In the first place the description of the village as mounji is significant. It is only when a village already under cultivation is granted, it is known as a mounji village vide Upadrasta Venkaba Sastrulu v. Devi Sitaramudu 24 Ind. Cas. 224 : 26 M.L.J. 585 : 38 M.P 891. Secondly, column 6 of the Inam Statement shows that the grant was in the nature of a Srothriam of G. 60 Pagodas to be enjoyed by the grantee, Sreemat Prathivedi Bhayamkaram Varadacharyulu Garu and his heirs. Srothriam means literally an assignment of land revenue to a Srothria or Brahmin learned in the Vedae, and here evidently the grantee, as his name indicates, is a Vishtnavite Brahmin of that stamp. Admittedly the grantee and his descendants are Gurus for a number of people. Srothriam grant gives no right over the lands, and the grantee is only entitled to land revenue and cannot interfere with the occupants as long as they pay the established rent Papala Narayanasami Naidu v. Pensalani Kunniappa Naidu14 Ind. Cas. 261 : 24 M.L.J. 36 : (1912) M.W.N. 496; Chinnan v. Kondam Naidu 23 Ind. Cas. 113 : 26 M.L.J. 169 : 1 L.W. 41. Thus the Inam Statement shows conclusively that the grant was a Srothriam inam of 60 Pagodas of land revenue. The unambiguous nature of the present grantee, therefore, obviates the decision of any question as to even where .the grant had been made of the lands in the village or of Melevaram in such lands the section would cover such grants as well.
3. The third point for consideration is whether the land revenue of the village was granted to a person not owning the Kudivaram, thereof. All the other voluminous oral and documentary evidence in the case is of use only in considering this aspect of the case. Firstly, there is scarcely any doubt that the grantee and his descendants were permanent residents of Vijayarai in the Ellore Taluk. Dammennu a village situate in the Tanuku Taluk at a distance of more than 50 miles from Vijayarai. Admittedly the Agraharamdars do not own at present any site or house in the village. Nor is there any evidence worth the name that they did so at any other time. the dwelling sites owned by the tenants belong to them and the Agraharamdars have no right to any of such sites. There is further no doubt whatever that they never lived in the village except camping temporarily in the Kurnam's house, when they went to collect Cist or lease out the lands. The plaintiffs' attempt to establish to the contrary is a miserable failure and does not deserve any detailed examination. The P.W. No. 8, Kalluri Venkayya, who is aged about 60 years, has been the Kurnam of the village for the last 40 years. In spite of the fact that he is hand and glove with the plaintiffs, and is too much interested in the result of the suit to speak the truth, he was nevertheless perforce obliged to admit the aforesaid facts. It is established beyond all reasonable doubt that till the year 1891 so long as the Agraharam had not been partitioned into 4 shares by the Agraharamdars, they never claimed any higher right in the lands than that of collecting the Mamool Cist, nor did they deny the right of the ryots to permanent occupancy rights in the lands. It is only after the partition of the landa by the Agraharamdars they made a determined effort to get at the lauds. In the Inam Statement, the inamdars state as follows:-- We have been paying the Cist to the Government on the Srothriam and maintaining ourselves with the income therefrom * * *. A reference to the Inam Register, Exhibit M, shows that the Agraharamdars had then let the village for 5 years for an annual rent of Rs. 700. The Mashath account prepared on 25th September 1858 gives in detail the holdings of individual ryots in the village (XXXVIII). In order to facilitate the collection of rent from the ryots, the Agraharamdars had been till 1891 in the habit of executing a cowle for the entire village to the names of four principal or representative ryots of the village, with a stipulation therein that they should not collect from the other ryots any amount more than the amount settled with such ryots according to the Tharamvar of the lands owned by them (vide Exhibits II, III and IV). In almost all the cowles prior to 1891, the enjoyment of the several tenants or their holdings for a long time (* * * vide Exhibit II) is expressly and unambiguously admitted, and their right to continue on the land is not also denied, as the said cowles do not contain any stipulation that the tenants should surrender the land at the end of the period. The evidence of the Kurnam also with regard to the tenants' rights in the land is important to show that the tenants were recognised by the landlords as possessed of permanent occupancy rights. He says, 'if a tenant dies, his son or heir cultivates unless for any reason the landlord gives the land to strangers. If a tenant dies leaving a son, his son cultivates the land. This has been the practice ever since I became Kurnam. The Agraharamdar collects rent from tenant's son or heir as described above.' Asked whether the Agraharamdars had ever disallowed the heir to cultivate the lands, he said: 'I cannot give any instance when the Agraharamdar did not allow the heir of the tenant to cultivate the land of the deceased tenant.' Then again 'there is no practice for the heirs of the deceased tenant to apply to the Agraharamdar, to apply for permission to cultivate the land of the deceased tenant,' and he admitted that the names of female heirs are so registered in the account. For example after her husband's brother, Ramayya's death, Pullamma's name is entered in the accounts. He further admitted that till the year 1891 there has been not a single instance of a tenant having been ejected, and that till then there was no change of holding effected by the landlords. In addition to the aforesaid evidence there have been numerous alienations by the tenants of their lands by sale, mortgage, gift, &a.; (vide Exhibits VI to VIc, XII, XVIII to XXII). All these documents have been written by the Kurnam himself, and the lands dealt with are described as lands in which the tenants had jeroit right. It was also admitted by the Kurnam that the Agraharamdars raised no objection to such transfers and received the rent from the transferees, and that their names also were duly entered in the accounts. The Proceeding in Summary Suit No. 117 of 1891 is significant as showing that the Agraharamdars had till that date never disputed the occupancy right of the tenants. In the said suit Kanoori Venkatareddi sued for acceptance of a patta by a tenant with the Mamool Cist Rs. 23-5-7. (Exhibit XXIX) The suit was compromised to the effect that a decree may be passed for the acceptance of a patta with the Mamool Cist Rs, 914 0 (Exhibit XXX). After the partition by the Agraharamdars, the above tenant was sought to be ejected in 1892, and on his setting up a right of occupancy it was found in his favour, and the suit was dismissed, and the decree was confirmed both in the first Appellate Court and in the High Court (vide Exhibits XIV and XIVa). As a matter of fact, as already observed, there was no attempt till the actual partition by the Agraharamdars of the village in 1891 to dispute the occupancy rights of the tenants in any manner. The Agraharamdars were content to receive the Mamool Cist from the several ryots. But after 1891 the Agraharamdars put forward a claim to the absolute ownership of the land, and the tenants resisted the claim for some years. But finally the tenants and the landlords same practically to an agreement by which most of the tenants had their occupancy rights in the lands confirmed or recognised by the Agraharamdars on payment of some consideration. Thus Sadagopachari and Jagannathachari, who in all owned one-half of the Agraharam or 120 acres, have confirmed the occupancy rights possessed on the lands by the tenants for some consideration. With regard to another Agraharamdar, Venkata Reddi, who owns 60 acres, he has similarly recognised the occupancy rights of the tenants for 40 acres. Of course in all the above cases, the recognition, had been effected either as sales or as permanent leases. In the case of Thiruvengalamma, as she had only a widow's estate the above procedure could not be followed, and with regard to 40 acres she executed leases for the long period of 60 years for some consideration and for the remaining 20 acres for 10 years to the tenants who had long been in occupation of the lands. The Kurnam, P. W. No. 8, helped the Agraharamdar materially in bringing round the tenants, and has also materially profited thereby. Of course, the reason of the tenants' agreeing to so repurchase the occupancy rights from the Agraharamdars was of course due to their fear that they might be ejected out of their lands either forcibly or by being dragged into litigation for long periods, and thus be ruined. It must also be said that subsequent to 1851 the tenants as a whole recognised the landlords' right to the lands and have in many instances given up their lands which the landlords had rented to others. It may be safely asserted that while the evidence prior to 1891 is all in favour of the tenants, the evidence subsequent to 1891 is all in favour of the Agraharamdars' right to the entire land. They have subsequent thereto periodically increased the rents, changed tenancies, and have otherwise also exercised absolute ownership of the lands. No good purpose would be served by setting forth in detail the evidence on the above indisputable foots. But a village has to be determined whether it is an estate or not by the original grant and by ascertaining whether at the time of the grant the grantee also owned the Kudivaram of the village. In the present case the evidence conclusively shows that at the time of the grant the grantee did not own the Kudivaram. I accordingly answer the issue in the affirmative.
11. The Civil miscellaneous appeal and the civil revision petition are against orders returning the plaint for presentation to the Revenue Court. The suit in the Civil miscellaneous appeal was filed by the agraharamdars about sixty tenants for ejectment. On the first occasion the then Subordinate Judge decided that the Civil Court had no jurisdiction to entertain the suit. On appeal against that order this Court pointed out that the village in question was not an estate under Clause (e) of Section 3 (ii) of the Estates land Act, and remanded the case for a finding whether it came under (ii) (d). The present Subordinate Judge has come to the conclusion that it is an estate falling under Section 3(ii)(d).
12. Mr. Govindaraghava Aiyer who appeared for the appellant addressed a vary elaborate argument to us resting it mainly upon the recent Privy Council decision in Suryanarayana v. Patanna 48 Ind. Cas. 689 : 41 M.P 1012 : 25 M.L.T. 30 : (1918) M.W.N. 859 : 28 C.W.N. 273 : 9 L.W. 126 : 29 C.L.J. 153 : 1 U.P.L.R. (P.C.) 11 : 36 M.L.J. 585 : 21 Bom. L.R. 517 : (1919) M.W.N. 453 : 45 I.A. 209 in the course of the argument we expressed doubts whether that decision would cover this case, and whether the fact that the grant of the Agraharam was made by one of the Nuzvid Zemindara and certain other circumstances would not differentiate this case from the one before the judicial Committee. Since the argument was concluded, we have had the advantage of hearing Mr. Ramesam on a similar question relating to Thottapalli estate, and the learned Vakil drew our attention to a subsequent decision of the judicial Committee in Upadrashta Venkata Sastrulu v. Devi Seetharamudu 51 Ind. Cas. 301 : 43 I.A. 123 :17 A.L.J. 725 : 37 M.L.J. 42 : 21 Bom. L.R. 925 : 28 M.L.T. 175 : 30 C.L.J. 441 : 10 L.W. 633 : 24 C.W.N. 129. which to a considerable extent has dispelled our doubts entertained at the hearing. That decision reverses the judgment of this Court in Upadrasta Venkata Sastrulu v. Devi Sitaramudu 24 Ind. Cas. 224 : 26 M.L.J. 585 : 38 M.p 891. In that case as in the case before us, the grant in question was made by one of the Nuzvid Zemindars, and was made to Brahmins. Yet the judicial Committee, following their view enunciated in the case in Suryanarayana v. Polanna 16. 48 Ind. Cas. 689 : (1918) M.W.N. 859 : 28 C.W.N. 273 : 9 L.W. 126 : 29 C.J. 153 : L.U.P.L.R. (C.P.) 11 : 36 M.L.J. 585 : 21 Bom. L.R. 547 : (1919) M.W.N. 463 : 45 I.A. 209 have held that there is no presumption that the land revenue alone was granted. If the matter were res integra, we would have hid some hesitation in applying the principles enunciated in Suryanarayana v. Patanna 48 Ind. Cas. 689 : 41 M.p 1012 : M.L.T. 30 : (1918) M.W.N. 859 : 28 C.W.N. 273 : 9 L.W. 126 : 29 C.J. 153 : L.U.P.L.R. (C.P.) 11 : 36 M.L.J. 585 : 21 Bom. L.R. 547 : (1919) M.W.N. 463 : 45 I.A. 209 to a grant by a Nuzvid Zemindar. In Appeals Nos. 122 and 123 of 1900, and 32 and 41 of 1904, this Court took occasion to examine the origin o the Nuzvid and Nidadavole Zemindaries. Quoting from Grant's Political Survey, Justices Davies and Banson held that the ancestors of the present Nuzvid Zemindars were farmers of revenue under the Nizam, It is not necessary to pursue this matter further, although it is open to argument that the same rule of construction cannot be applied to grants from these Zemindars as would apply to grants made by the ancient Kings of this country. But the judicial Committee have, by referring to the preamble of Regulation XXXI of 1802, construed a grant of a similar character in their subsequent decision as conferring a right to the land itself and not merely to the land revenue. Section 2 of that Regulation may be regarded, as suggested by Mr. Ramesam, as justifying this conclusion. The framers of that section ware aware that not only Ruling Princes but persons who had a leaser right in the soil but who professed to possess royal rights and prerogatives were making grants in the same manner. The section says that grants by these limited owners would be equally valid. This may be construed as a release on the part of the East India Company, which succeeded to the sovereign rights in these territories, of their right to take exception to the grant made by such owners. Therefore, the grant by one of the Nuzvid Zemindars would convey the right in the property as well as the right in the soil, which by the Regulation XXXI of 1802 may be regarded as having been surrendered to the grantee by the Government. Even that would not deprive tenants of their rights, if they had any, in the soil. because neither the Zemindar by such grant nor the Government by their release can convey rights over which they had no control. Therefore, the question resolves itself into this. Had the defendants any right of occupancy at the time when the grant was made by the Nuzvid Zemindar which in this case is said to have been made about the year 1747: Or, in other words in the language of the judicial Committee in the case reported as Suryanarayana v. Patanna 48 Ind. Cas. 689 : (1918) M.W.N. 859 : 28 C.W.N. 273 : 9 L.W. 126 : 29 C.L.J. 153 : 1 U.P.L.R. (P.C.) 11 : 36 M.L.J. 585 : 21 Bom. L.R. 517 : (1919) M.W.N 453 : 45 I.A. 209; 'Is it proved, or is there evidence to suggest, that at the date of the grant there were any tenants in the village holding lands with any rights of occupancy by custom or otherwise P' There can be no question from the language of the judgment of the judicial Committee in the two cases already referred to that the burden of proving this is on the defendants. Looking at it from another point of view also the burden is on the defendants. It is they that object to the jurisdiction of the Civil Court, and it is for them to show that their rights in the property are of such a character as a Civil Court cannot take cognizance of. The Subordinate Judge rightly held that the burden was on the tenants. He has, however, come to the conclusion that that burden has been discharged. Although in Civil Miscellaneous Appeal No. 16 of 1910 there is no special reference to the current of authorities in this Presidency to the effect that grants of this description should be presumed to have affected the land revenue only and not the land, still there can be no doubt that in appreciating the. evidence, the Subordinate Judge has been led to the conclusion at which he has arrived by this well-known presumption of fact. Since his judgment was delivered the judicial Committee, as we pointed out already, have taken a different view of the situation and, therefore, in dealing with the judgment of the lower Court we have to examine the evidence from a new standpoint--a point which did not naturally strike the Subordinate Judge.
13. We shall now proceed to shortly discuss the evidence that has been let in. Mr. Govindaraghava Aiyar relied upon Exhibits KK to NN, which ware executed between the years 1864 and 1870, as showing that the Agraharamdar regarded himself as the owner of the land. They were mortgage bonds and contained statements that they were under cultivation by somebody and that in the event of the installments not being paid the documents should be regarded as cowles enabling the mortgagee to take possession of the land. At best this is self-serving evidence. There is no evidence before us that the tenants were deprived of their possession. This clause about treating the document as a cowle is not sufficient to warrant us in holding that the Zemindar was the owner of the soil, The learned Vakil then referred to Exhibit M, the Inam Register of 1860, and commented upon the statement therein that the Agraharam was under lease for 5 years. If one remembers the fact that for a long time in the Northern Cirkars, Zemindars and Agraharam-dars were in the habit of leasing out their right to receive rent from the tenants to middlemen, there is nothing in the statement relied on to show that it was the cultivation of the land that was leased for the period, Nor, is Exhibit Z, wherein directions were given to the agent to put a seal upon the crops, inconsistent with the conception of occupancy rights in the tenants. There are many cases in which as against occupancy rights the Zemindar has claimed the right to insert in the pitta a condition that the tenants should not carry away the crops without notice to the Zemindar and that the agent of the Zemindar should put a seal upon the harvested crops. There is nothing in Exhibits Vi and VII, which refer to pre-existing cowles and renewals of cowles, to support the appellant's case. In Suri Venkata Subbarayya Sastri v. Darapparoddi Kristnaiya 7 Ind. Cas. 358 : 20 M.L.J. 526. it was held that such conditions were not inconsistent with rights of occupancy. There are some documents relating to, the acquisition of land which have better evidentiary value for the plaintiff than the ones we have discussed. It seems apparent that in one instance at any rate the Agraharamdar was given some land outside the Agraharam in lieu of the land taken by Government within the Agraharam. The defendants have not shown that they had a similar exchange of property for their interests in the land acquired. But that is only a solitary instance and may be due to the fact that the land was Poramboke in ,which there were no tenants or the tenants were not astute enough to assert their rights. There are documents subsequent to 1891 which undoubtedly show that the Agraharamdar has been asserting a right in the soil. This is conceded by the lower Court. It does not attach any importance, and in our opinion rightly, to these later documents. In Section 185 of the Estates Land Act, it is clearly intended by the Legislature that the evidence of acts and of assertions subsequent to 1898 should not be regarded as settling the rights of the landlord against the tenant. The reason of this rule is that in the year 1898 the first draft of the act which subsequently became law in 1908 was prepared and published. The land holders, anticipating that tenants would be given large rights in the property, took active steps to create evidence in their favour. It is for that reason the legislature has inserted the provision referred to by us in Section 185. Although the year 1898 was mentioned in that section, there can be no doubt that at least in the part of the country from which the present litigation has come the contest between landlord and tenant has been acute and pronounced for a long time earlier. From Appa Rau v. Ratnam 13 M.P 249. which was a decision of 1889 and which related to the Nuzivid Zemindari, it is clear that there was active controversy regarding occupancy rights between the zemindar and the tenant. Other cases may also be quoted to the same effect. Therefore we agree with the Subordinate Judge that much importance should not be attached to the documents which have been brought into existence Since the year 1891.
14. Thus far we have dealt with the evidence relied on by the plaintiff for establishing that he had the Kudivaram right in himself. It may be mentioned that the sannad itself has not been produced. Therefore if the burden of proof was upon the Agraharamdar to show that at the time of the grant not only the Melvaram rights but also the rights in the soil were granted to him, we would have agreed with the Subordinate Judge that he has failed to prove his case. But as we said before, in the language of the Judicial Committee, it is for the defendants to show that at the date of the grant they or their ancestors had the right of occupancy in the land. An examination of the documents : filed by them does not establish this position. We shall very briefly deal with them, because we are anxious that we should not prejudice the parties in any way by a too elaborate discussion of them. There are documents on their side which contain statements by the Agraharamdar that the defendants and their ancestors have been long on the soil, that rates of rent have been settled with them and that the middleman or the lessee should not increase the rates thus settled Exhibits VI (c), XXII, XIX, VI and Exhibit II are instances of this kind. It must be said that they are all subsequent to the year 1883. There are documents which go to show that these tenants had been alienating the property as if they were the owners thereof. Exhibits XXI and XX are instances of this kind. There is Exhibit XXXVIII, a document of 1853, which shows that the Agraharamdar had compiled a list of tenants in occupation. Exhibit XIV shows that a previous suit in ejectment against the tenant was unsuccessful. These documents undoubtedly show that there had been an assertion of the right in the soil on the part of the tenants. They do not either directly or inferentially suggest that at the time of the grant in 1747 they or their ancestors had any occupancy right. It may be, and we must express this opinion very guardedly, that these documents show that Since the grant the tenants have acquired an occupancy right. That is a matter for consideration at the trial on the merits. But for the purposes of deciding whether the Agraharam is an estate these documents are not of much value. For these reasons we must hold that it has not been shown that the lands in the Agraharam were in the occupation of the tenants at the time of the grant to the plaintiff's ancestors and that, therefore, it is not proved that it is an Estate falling within Clause 3(2)(d) of the Estates Land Act. We must, therefore, reverse the decision of the Subordinate Judge and remand the case to the Court of first instance for disposal the merits. Costs hitherto incurred will be provided for in the revised decree. As regards the Razinama petitions alleged to have been executed ,by some of the tenants, the Court of first instance will inquire into their genuineness and validity and deal with them.
15. In the civil revision petition, although, it is open to argument that there is no question of want of jurisdiction which would enable us to interfere with the decision of the Court below, we think that having regard to our decision in the Civil miscellaneous appeal it would be injurious to the rights of both parties to allow one set of cases to be heard by the Revenue Court and another set of cases by the Civil Court. It may not inaptly be said that having regard to the presumption with which the judgment in the Civil revision petition starts, namely, that in case of similar grants the land revenue alone must be taken to have been granted, there has been material irregularity in the exercise of jurisdiction. We must reverse that decision as well and remand the case for disposal by the Civil Court on the merits. Costs hitherto incurred will be provided for in the revised decree.